I think this opens up a great discussion in regards to contractual agreements, "hired hand" drummer, or "band member", royalty agreements, etc.

Although we do not really know the agreement they shared re: songwriting/publishing on various songs, if it's not written down, it's not valid. Perhaps he was promised points on various songs.

I think that drummers need to account for what they bring to a song re: groove, "direction", feel, etc. Is the groove or drum part to a song as important as a melody and lyric? In todays pop market, I think it's 50/50.

In general, if you are being paid to do a session, you are being paid to create a part for a song, much like a guitar player doing a part or solo. If the artist already has a groove and direction they want you to play, that's one thing. If they say "what do you think the groove/feel/direction should be on this song?", then you are being asked to contribute to the writing of that song, in my opinion, and a "point" or royalty of that song should be negotiated. If the artist starts the song as a shuffle, and you change it to an up tempo funk groove, and they like it, and it's a hit, then you've created a very important part of what makes that song work.

I will be following this closely, as I think we all should, as it may open up new avenues for us "behind the scenes" musicians!

In general, if you are being paid to do a session, you are being paid to create a part for a song, much like a guitar player doing a part or solo. If the artist already has a groove and direction they want you to play, that's one thing. If they say "what do you think the groove/feel/direction should be on this song?", then you are being asked to contribute to the writing of that song, in my opinion, and a "point" or royalty of that song should be negotiated. If the artist starts the song as a shuffle, and you change it to an up tempo funk groove, and they like it, and it's a hit, then you've created a very important part of what makes that song work.

Interesting. I'm pretty sure it wouldn't hold up in court though. As you say, it comes down to what contractual agreements were made, but that aside we're really talking about who owns the rights to the song or songs in question. Now that has nothing to do with assigning points, so it could well be that DeVitto has a case. But I remember reading that it was the producer who told him what kind of beat to play on "Just The Way You Are." I guess I question just how much input DeVitto had to the way the recordings were made.
Everyone who records thinks that their part is valuable to the song's musical or commercial success, but nothing in the contract means nothing in the bank.

Good for him!
If he was with him for 30 years and wasn't paid royalties for 10, then he must be due something equivalent to the 20 years prior.

I hate this kind of stuff. I was in an original band for 10 years and fully participated in the writing of every song. When it came time to get copyrights, the guitarist and the bass player (brothers) went ahead and got them in their names and left me out of the loop. I demanded that they pay me as a per-session drummer for hire and was subsequently fired.
They never found a better drummer to replace me and regret it to this day.

Why is it that boozed up, drug induced artists feel the need to fire drummers to fulfill their egos when they get bruised? Are we all such easy targets in this business?

Which is why serious bands need to have contracts vis a vis each other. If not, you are a hired hand paid by the gig. Or a sessions player.

As a sessions player if you happen to make a huge contribution towards the groove or the shape that a tune takes in that particular session, I'm afraid you cant ask to be paid differently. The artist/music company has paid for your time and your music, regardless of the size of your contribution.

Some of my work is in this area ( music production ) and I constantly deal with session player A for example, who charges x by the hour versus player B who might charge double that. Therefore what I'm paying for is your particular musicality on your instrument, whatever that may be.

In some sessions drummers have suggested chord changes, different horn parts, little changes in melody, which made a huge difference to the outcome but were paid as per the original agreement. For their time. Not necessarily for their time on the 'drums'.

Is it fair? No. But there is not better way as yet. My suggestion in all situations would be to ensure 3 things: clarity, clarity, clarity.

So what happens if you have the same set of 'hired hands' playing many tours/recording dates, and 'appear' or seem to be bands? Sting for example, has a profit sharing arrangement with his guitarist Dominique Miller which is contractual and unique. Works beautifully for them. So far.

Make sure your understanding with allother parties involved is upfront & clear, preferably contractually. The reason U2 is a very rich AND a very happy band is because they have left nothing open to a 'what if' situation in the future. Everything and everyone is covered by contracts.

On this one I dont know. Was Billy a solo artist or was it his band? I know that he has been through lots of twists and turns with UA, Colombia, with people buying out his earlier contracts, royalty agreements etc, so it's kinda messy. Poor Lib's probably got caught up in it, got dumped and was frustrated enough to sue him.

Mike Hammer wrote:
Can someone please tell this guy he is not a musician, he's a drummer I repeat a drummer. You should bang on the drum all day. Again if you did not hear me. He's a drummer, bang, bang, bang. It's business and Billy is the piano man. You big DUMMIES

I think Liberty clearly had an influence on the groove of the songs he played such as "Stiletto" or "Pressure" just to name a couple. I can't imagine those songs turning out the same way with a different drummer.

I was in a band where I was a hired gun, played an interesting part I created that shaped the vibe, then it came into a small hit. No money [apart from the session]. It made a national advert [tv]; no money. Felt like fighting it, but didn't for personal reasons. I think as drummers and side men, when we become part of a ''hit'' band etc we may not gain by royalties right away, but do gain with more work in future as people like the looks of success' no matter how stupid it really is. Work by association. Liberty could in all seriousness be potentially screwing his name up if he plays this wrong. The one problem that arrises when in the 'creative' moment is talking about money, a sure way to kill the vibe. Tricky terrain for sure, but best done when the ship is still in port.

This happens from time to time. I remember it happened with the members of Creedance Clearwater Revival. It is a sad comment on the music business, esp in situations like this where there is a lot of money going around.

I have learned that you should never walk away from a paying gig without a fight. Liberty probably had a strong wrongful termination suit. I think the statute on that is one year. You can't fire a guy because he was your drinking Buddy, which is what Joel said, anymore than you can fire a person for "saying something." any more than you can fire someone because you :"feel like it." You have to show good cause. In a jazz situation that is different because normally a new band plays new repertoire. But BJ's been playing the same hits for thirty years.

Obviously, if he has not seen any royalties in 10 years there is a problem. He is on those recordings and they do get a lot of airplay. I think that it is a good point that musicians should be aware of these things. I met a woman many years ago who had been on the original Jesus Christ Superstar recordings. She was offered a percentage or 100 pounds. She took the 100 pounds. It probably paid her rent. Her percentage would have made her a millionaire. It's only money. What was that guy's name, Andrew Lloyd Webber or something like that?

Mitch Mitchell died pretty much broke, he didn't earn a dime from royalties from Hendrix albums as he was a hired gun. That is the deal he negotiated at the time, I guess with hindsight!!

Quote:

The reason U2 is a very rich AND a very happy band is because they have left nothing open to a 'what if' situation in the future. Everything and everyone is covered by contracts.

Pretty much from the off these guys have agreed everything is split four ways, pretty much five with McGuiness the Manager. So regardless who writes the song etc, four ways. As you said that is the reason they are still going.

Someone like Oasis fight like cat and dog because one entity of the band is earning four or five times what they are (Noel).......

This topic killed The Police. Copeland and Summers egos crushed the golden goose with Sting.

Mike Joyce (thinks that's his name) probably the best example. The drummer from The Smiths. He succesfully sued Marr and Morrissey in court several years back.

I wouldn't hold out much hope for Lib De Vitto, all he'll ensure is that he'll never play with Billy Joel again!!

I think this opens up a great discussion in regards to contractual agreements, "hired hand" drummer, or "band member", royalty agreements, etc.

Although we do not really know the agreement they shared re: songwriting/publishing on various songs, if it's not written down, it's not valid. Perhaps he was promised points on various songs.

I think that drummers need to account for what they bring to a song re: groove, "direction", feel, etc. Is the groove or drum part to a song as important as a melody and lyric? In todays pop market, I think it's 50/50.

In general, if you are being paid to do a session, you are being paid to create a part for a song, much like a guitar player doing a part or solo. If the artist already has a groove and direction they want you to play, that's one thing. If they say "what do you think the groove/feel/direction should be on this song?", then you are being asked to contribute to the writing of that song, in my opinion, and a "point" or royalty of that song should be negotiated. If the artist starts the song as a shuffle, and you change it to an up tempo funk groove, and they like it, and it's a hit, then you've created a very important part of what makes that song work.

I will be following this closely, as I think we all should, as it may open up new avenues for us "behind the scenes" musicians!

Thanks Pat!!! This thread raises some really good points and some that are a little confused. Some of the issues raised are near and dear to the heart of many in the business and some are starting to be addressed right now! At the risk of writing a short novel I would like to try to clarify some points and address some others.

First you have to recognize that the real money in this business is in songwriting and in songwriting royalties. The payment of such royalties is tied to what under current law you can copyright. Copyright is reserved for only the lyrics and melody and, therefore, except under very rare circumstances does not include the contribution of the drummer. In some cases, drummers or sidemen have litigated this issue and tried to argue that their part is integral to the song and contributes to the overall work in such a manner as to warrant a royalty payment. Most of these claims have been unsuccessful.

In regard to Liberty's claim we don't yet know enough concerning the evidence of agreements between Liberty and Billy Joel to really address the merits of his claim. As someone who deals with similar issues, however, we all should applaud him for taking a stand and maybe this will help bring the issue to the fore. In regard to the post which mentioned Liberty has a wrongful termination suit, i very much doubt it. Most states in the US (and I don't know which state's law would apply to Liberty's claim) are "employment at will" states: this means that any employee can be fired for a good reason, a bad reason or no reason at all (unless that reason violates public policy - eg. you can't be fired because you are African-American). Furthermore, it is unlikely that Liberty was ever an "employee" and was more likely an independent contractor and Billy Joel is free to contract or not contract with whomever he wants.

The traditional way around the lack of a royalty payment to the sideman/woman is to agree with the songwriter that the part you wrote is worthy of a writing credit for the song as a whole. This will provide you with a piece of the pie but, make sure that this Agreement is written down!! In many cases, however, this is simply impossible to do as the songwriter has no desire to relinquish his or her rights or any part of them and currently their is no legal basis to make such a claim in the courts. Unfortunately, a drummer who insists on such an arrangement may find themselves being replaced. Prior posts which mention U2 and the Police are good examples of the differing approach to this issue. U2 share all royalties while the Police did not! In the case of a session player - who, remember, is often retained because of their ability to play quickly and accurately - they are simply paid a flat fee which may be scale or, depending on the fame and or notoriety of the player, may be higher (or for the non-union guys out there, may be lower). This system, most often, also applies to the big name guys and even though they may have a signature part still only earn a work-for-hire fee and take no part of the royalties. Gadd, for example, received no songwriting credit for Aja or for 50 ways, whereas many of us on this site would argue that he would have a good claim to do so.

In the band context, some bands have been very creative in addressing this issue. In the case of Chicago, an agreement was reached among the band members that a percentage of all songwriting royalties would be put into trust and split among the non -songwriting members of the band who played on that tune. This provides residual payment to those musicians who are no longer with the band and often amounts to a higher royalty payment than is paid for simple sales. This approach is also less onerous for the "songwriter" as he or she still reatins a higher percentage than if the credit was simply shared.

Perhaps the most unfair issue, especially for drummers, relates to the use of sampling. Often it is the distinctive drum part to a song which is sampled and used on a newly released record. There is, of course, a royalty payment made for use of the sample but it goes to the songwriter who owns the copyright. This is the case even if the sample is ONLY the drum part and the melody and lyrics of the song are never included in the new version. There is an Ashford and Simpson song which has a drum intro played by Jonathan Moffett. This intro has been sampled more than 500 times and Jonathan has never received any money for it above what he was paid for the session. The part was written by him and, arguably, it made the song. The part is certainly distinctive enough to recognize the song just from the drum intro. Under current copyright law, he has no claim. It is this particular unfairness which we are trying to address and which has many, many of the top players out there recognizing this fundamental unfairness.

Having congress change the copyright law to address unfairness to drummers is unlikely to obtain very much priority among our representatives. This has led to many discussions and attempts to resolve this issue in other ways. One potential solution is an agreement to be executed by the artist and the sideman/woman which concerns sampling of their individual parts and a share of the royalty payments for the same. This is extremely complicated and fraught with problems associated with policing the source of the royalty payment. Another solution is to use the musicians' union but in some states (such as Florida) there can be no closed shop and so the union has more limited power. We will, however, keep working on behalf of musicians and drummers to make sure that the system becomes more fair.

In the meantime I would suggest listening to Pat. All agreements should be in writing and nothing should be done in the absence of an agreement (and that includes agreements between band members); never sign anything except an autograph without having a lawyer look at it first and never sign an autograph at the bottom right hand side of a blank 8 x11 piece of paper!

I have already written about 10x the information that most will read. Hopefully, however, you can tell that this is an issue which is dear to my heart. I am interested to hear your thoughts.

I only read about 10% of your post; but what I did read was very interesting. :)

The legal merits of the Liberty De Vitto case are unknown, but I think you are very correct in stating that this is an example of a high profile musician doing something that needs to be addressed on a broader scale, and the examples you gave like 50 Ways are really great indications of the problem. There are some great grooves out there, and in many contexts the groove not only adds something unique to the song, but also sells the song from the get go. There are examples of where the groove writes the song. Take Five is one.

I think that this is a larger scale problem in the music industry. Many musicians up front sign away a lot of their royalty rights. In the book confessions of the Record Producer, Moses Avalon talks about this. He states the the record companies best asset is the young green kid who has been told his whole life he has no talent. When the record company signs him to a three record deal, he is just so happy to be making music his life, he signs away all his royalties.So one always needs to be clear.

I think we as musicians ourselves have a lot of biases about making music. We want it to be something special,. It is nice to talk to people who don't have those types of biases and see what they say about the business of making music your livelihood. There is really nothing 'special' about it.